Kelly v. State

CLINTON, Judge,

dissenting in part and concurring in the judgment.

As broad as the exception is in Article III, Sec. 56 — “except as otherwise provided in this Constitution,” the Legislature shall not pass any local or special law authorizing matters therein proscribed — it does not admit evasion on the theory asserted by the State and accepted by the court of appeals, viz:

“The State contends that this section [1, art. V], rather than art. Ill, § 56, is controlling in this case. We agree. We hold that art. 1918c is not an unconstitutional ‘local or special law,’ in violation of art. Ill, § 56. The Legislature is authorized by art. V., § 1 to create courts and organize those courts as they deem necessary. Appellant’s first ground of error is overruled.”

Kelly v. State, 686 S.W.2d 742, 743 (Tex.App.—Austin 1985). 1 That analysis turns both provisions upside down, and while the opinion of this Court sets them partially upright again it expresses some notions that put at risk those protections the Framers clearly intended.

In the first place, as constitutional history of Article V, Sec. 1 and related sections makes plain, the 194th Judicial District Court of Dallas County was not created by the Legislature pursuant to authority relied on by the State — the third paragraph of Sec. 1. 2

A particular concern of the Framers was with preexisting “Criminal Courts” authorized by Article IY, Sec. 1, Constitution of 1866, and in Article V, Sec. 1, Constitution of 1869. One effect of the 1876 version of Sec. 1 was to abolish all such courts but one expressly designated therein. For very special reasons the “Criminal District Court of Galveston and Harris Counties” was retained, and all other “criminal district courts” were to be established by the Legislature. See Interpretive Commentary and Historical Note following Sec. 1. Although the first paragraph of Sec. 1 alluded to “such other courts as may be established by law,” it was uniformly held that the judicial system as provided in the Constitution could not be changed by the Legislature. Ex parte Towles, 48 Tex. 413 (1877); Ginnochio v. State, 30 Tex.App. 584 , 18 S.W. 82 (1891); see also Leach v. State, 36 Tex.Cr.R. 248 , 36 S.W. 471 (1896). Such decisions, it was later said, “nullified” the quoted language in Sec. 1. Harris County v. Stewart, 91 Tex. 133 , 41 S.W. 650, 655 (1897).

As a reaction to those decisions, in 1891 an amendment added the third paragraph to Sec. 1, and thereby “restored” legislative power to “establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof [et cetera].” See generally Harris County v. Stewart, supra, 41 S.W. at 655 ; State ex rel. Rector v. McClelland, 148 Tex. 372 , 224 S.W.2d 706, 709-710 (1949). However, that authority pertains to courts other than those constitutional courts identified in the first paragraph of Sec. 1, vesting “the judicial power of this State,” e.g., “in District Courts [and] in County Courts_” Jordan v. Crudgington, 149 Tex. 237 , 231 S.W.2d 641 (1950).

That constitutional district courts are not within the contemplation of “such other courts” is shown by the fact that Article V, Sec. 7 of the 1876 Constitution first limited their number to twentysix judicial districts, whereas the 1891 amendment provided flexibility for the Legislature to apportion the State into as many judicial districts “as may now or hereafter be provided by law.” *52 Thus there was a mechanism for establishing additional constitutional district courts with jurisdiction already provided by Sec. 8. Article III, Sec. 42 mandates the Legislature to “pass such laws as may be necessary to carry into effect the provisions of this Constitution.” Authority to create courts is “inherent in the legislative department of the state,” Harris County v. Stewart, supra 41 S.W. at 653 . (The third paragraph in Sec. 1 “was adopted to abrogate the construction given in those [earlier] cases,” ibid., particularly to authorize the Legislature to “prescribe the jurisdiction and organization” for “such other courts” it may establish.)

Similarly, in Sec. 16 of Article V, the same Constitution of 1876 and its amendment in 1891 provided for jurisdiction of the “County Court,” but — unlike Sec. 8— Sec. 22 specifically authorized the Legislature “by local or general law, to increase, diminish or change [its jurisdiction].” See Interpretive Commentary following. This coupled with Sec. 1 enabled the Legislature to create “such other courts” as, for one example, “county court at law.” Johnson v. City of Dallas, 78 S.W.2d 265, 268 (Tex.Civ.App.—Dallas 1934), writ refused.

With respect both to constitutional district courts and to constitutional county courts, in Jordan v. Crudgington, supra, the Supreme Court accurately discerned the reason for the third paragraph of Sec. 1, viz:

“The amendment was not written into the Constitution for the purpose of authorizing the Legislature to establish more district or county courts. No question had ever arisen as to its authority to do that. But the amendment was adopted for the purpose of making it certain that the Legislature had the authority to establish courts other than constitutional courts, and that its acts in establishing them should not be stricken down on the ground that they were violative of what might be conceived by vague implications to be the general spirit of the Constitution, or that they did not conform to the constitutional pattern for district or county courts. [T]he 1891 amendment expressly authorized the Legislature to establish not more of the same courts, but ‘such other courts as it may deem necessary.’ ”

Id., 231 S.W.2d at 645 .

For those reasons, therefore, it is a grievous error to hold that the third paragraph of Article V, Sec. 1, authorized the Legislature to create the 194th Judicial District Court of Dallas County and to “prescribe [its] organization” in enacting Article 1918c, V.A.C.S. 3

Instead, in the Judicial Districts Act of 1969, Article 199a, V.A.C.S. (also V.T.C.A. Government Code, Title 2, Chapter 24, Sub-chapter C, Sec. 24.301, ff), within its authority under Article V, Sec. 7, the Legislature created the 194th Judicial District, thereby bestowing the 194th Judicial Court with constitutional jurisdiction delineated in Sec. 8. The Legislature also declared that each court created in Subchapter C “has the jurisdiction provided by the constitution and the general laws of this state for district courts,” id., Sec. 2.009), albeit directing the 194th District Court to give preference to criminal cases, id., Sec. 3.021(b). In *53 addition to other general provisions in Sub-chapter B, applicable to district courts, Sec. 2.010 directs that each such “special” district court created in Subchapter C “participate in all matters relating to juries, grand juries indictments, and docketing of cases in the same manner as the existing district court or courts which are similarly directed within that county.”

Having thus created the 194th Judicial District and established the 194th District Court as an equal among constitutional district courts, the Legislature had the same inherent power and authority it has always possessed and exercised to organize a district court by providing for officers and personnel, their duties and responsibilities, their compensation, as well as for its functions and operations. As Chief Justice Hickman noted in Jordan v. Crudgington, supra 231 S.W.2d at 645 , “No question had ever arisen as to its authority to do that.” And, indeed, in 1891 the basic purpose and objective in adding the third paragraph to Sec. 1 of Article V was to authorize the Legislature to exercise its “full power” in creating more constitutional courts to establish “such other courts” and “prescribe the jurisdiction and organization thereof.” Ibid, and Harris County v. Stewart, supra, 41 S.W. at 654-655 ; see discussion ante at pp. 43-44.

From the various holdings that otherwise valid provisions pertaining to organization of “such other courts” are not governed by Article III, Sec. 56, e.g., Harris County v. Crooker, 224 S.W. 792 (Tex.Civ.App.—Texarkana 1920), affirmed 112 Tex. 450 , 248 S.W. 652 (1923); Tom Green County v. Proffitt, 195 S.W.2d 845 (Tex.Civ.App.—Austin 1946), no writ history, and authorities cited therein, a fortiori similar provisions for constitutional courts are “otherwise provided in this Constitution,” through enactments implementing, e.g., Article V, Secs. 1, 7 and 8, and are not governed by Sec. 56. See Harris County v. Crooker, supra, 248 S.W. at 655 . The Dallas County Magistrates Act may reasonably be regarded as just such an enactment.

Accordingly, while my analysis and rationale differ somewhat from that of the majority regarding Article V, Sec. 1 and Article III, Sec. 56,1 reach the same result and, therefore, join the judgment of the Court. 4

MILLER, J., joins this opinion except note 4.

. All emphasis is mine throughout this opinion unless otherwise indicated.

. All such references are to that "third paragraph” as it appeared in Article V, Sec. 1, as amended in 1891. Since again amended in 1985, the content is now in the second paragraph of Sec. 1.

. The State directly relies on Jones v. Anderson, 189 S.W.2d 65 (Tex.Civ.App.—San Antonio 1945), writ refused. However, a careful reading of the opinion in that case proves the point made above. The precise issue was whether the office of County Attorney of Bexar County had been effectively abolished by a legislative act that created the Criminal Judicial District of Bexar County, the Criminal District Court of Bexar County, the office of Criminal District Attorney of Bexar County, "prescribed the jurisdiction of such court, conformed the jurisdiction of other courts thereto, and provided for the organization of such court.” Id., at 66 . The latter quoted portions describing the act obviously track the third paragraph of Sec. 1, plainly indicating that the Legislature had established one of “such other courts."

Moreover, as well as Harris County v. Stewart, supra, the San Antonio Court cited Cockrell v. State, 85 Tex.Cr.App. 326 , 211 S.W. 939 (1919), and Howard v. State, 77 Tex.Cr.R. 185 , 178 S.W. 506 (1915). Both deal directly with legislative creation of criminal district courts; each finds authority in the third paragraph of Sec. 1: Cockrell, at 941-942; Howard, at 508. Thus it has been said that "the jurisdiction exercised by [such other courts] is statutory,” Nymon v. Eggert, 154 S.W.2d 157, 162 (Tex.Civ.App.—El Paso 1941), no writ history.

. Having dissented in Ex parte Stacy, 709 S.W.2d 185 (Tex.Cr.App.1986), I again register my continuing disapproval of the notion that “a general order of referral” suffices to comply with former Article 1918c. See Wilson v. State, 698 S.W.2d 145, 148-150 (Tex.Cr.App.1985). Recurring servings of such pabulum as in note 3 of the majority opinion and in note 5 of Kelley v. State, 676 S.W.2d 104, 108 (Tex.Cr.App.1984), will not nourish compliance.